Visa Lawyer Blog

Articles Posted in Immigration Entrepreneurship

by

money-g45beb618b_1280

In this blog post, we close out the week with some great news that may be of interest to EB-5 Immigrant Investors.

On Tuesday July 18th the U.S. Citizenship, and Immigration Services (USCIS) announced new changes to the processing of Form I-526, Immigrant Petition by Alien Investor, for EB-5 investment to improve processing times and create greater efficiency.

How Will USCIS Process I-526 Petitions?

The USCIS Immigrant Investor Program Office (IPO) manages Form I-526 petition inventory through workflow queues factoring in whether: a visa is available (or will be available soon) and the underlying project has been reviewed.

Workflow queues are generally managed in first-in, first-out (FIFO) order when a visa is available or will be available soon.

Effective July 18, 2023, IPO will update its approach by grouping petitions by new commercial enterprise (NCE) with filing dates on or before November 30, 2019, within the workflow queue of petitions where the project has been reviewed and there is a visa available or soon to be available, to gain greater processing efficiencies.

In practice this means that multiple petitions with the same new commercial enterprise (NCE) will be assigned to the same adjudicator(s) to help process them more quickly. This is because multiple petitions associated with the same NCE will have an overlap in project documents and issues presented.

This approach will help reduce current EB-5 backlogs, that are stretching to a 4 to 5 year waiting period from date of filing.

Continue reading

by

email-3249062_1280
USCIS announced today May 17, 2019, that the agency has completed data entry for all H-1B petitions selected for fiscal year 2020, including petitions filed under the U.S. advanced degree exemption.

USCIS will now begin the long process of returning all H-1B cap-subject petitions that were not selected in the random computer-generated lottery that took place on April 10, 2019. USCIS will provide an announcement once it has completed the return of unselected H-1B petitions.

Petitioners who have not had the H-1B filing fees cashed, can expect to receive the return of their H-1B petition.

Continue reading

by

farewell-3258939_1280

Today, May 25, 2018, the Department of Homeland Security announced that it will be publishing a proposed rule in the Federal Register on May 29th to end the International Entrepreneur Rule, a program that gives foreign entrepreneurs the opportunity to apply for parole to come to the United States for the purpose of developing or starting a business venture in the United States.

As you may be aware, during July of last year, DHS took its first steps to dismantle the program by delaying the implementation of the rule until March 14, 2018. During that time, DHS began to draft a proposal to rescind the rule. In December of 2017 however, a federal court ordered USCIS to begin accepting international entrepreneur parole applications, vacating the delay.

In an act of defiance, DHS is now seeking to eliminate the international entrepreneur rule altogether because the department believes that the rule sweeps to broadly and doesn’t provide sufficient protections for U.S. workers and investors. According to the agency, the international entrepreneur rule “is not an appropriate vehicle for attracting and retaining international entrepreneurs.” This is once again an effort by the Trump administration to undermine Obama era policies such as Deferred Action, to better align with the President’s America-first policies on immigration.

Continue reading

by

37221006305_57c3571daa_z
Andrew, a real estate professional and Vice President of a large real estate firm headquartered in Asia, came to our office to discuss the possibility of filing for an EB-2 National Interest Waiver. To receive a national interest waiver, the applicant must demonstrate a high level of achievements and unique skills pertaining to their position to justify a waiver of the requirements of a job offer and labor certification filing.

The challenge in Andrew’s case was the absence of demonstrated achievements in the real estate business, and various non-disclosure agreements the client had signed restricting the documentation he could provide to demonstrate his exceptional ability in the industry, based on the high net worth projects he had worked on in the real estate industry. There were however other strengths that Andrew possessed that would qualify him for the national interest waiver. Andrew possessed a law degree from his home country, a master’s degree in taxation, a master’s degree in real estate from an ivy league university, and he was licensed to practice law in the United States. In addition to possessing these advanced degrees, two of which were received in the United States, Andrew’s career in the real estate sector spanned nearly 21 years.

The difficulty however remained in that Andrew did not have many documents to present to USCIS demonstrating his achievements as an entrepreneur and real estate investor, and the projects he was working on could not be disclosed based on the confidentiality agreements he had signed. Our experienced staff and attorneys decided that the best strategy in Andrew’s case was to highlight his education and vast experience in the industry having maintained high level positions in the industry, leading international real estate teams, heading overseas real estate and property management implementation strategies across various continents, and initiating/implementing domestic real estate acquisition projects totaling more than $4 billion in investment. We are happy to report that our strategy was successful and Andrew’s national interest waiver was recently approved. Here is how we did it.

Continue reading

by

9595278129_80e622a87a_z

Tis the season to file for one of the most popular visa types: The H-1B visa. Filings for cap-subject petitions will begin to be accepted by USCIS beginning April 2nd and the filing period will end on April 6, 2018. As many of you know, the odds of being selected in the H-1B visa lottery are slim, but even those who are selected in the visa lottery have to overcome yet another hurdle, the Request for Evidence. Since President Trump issued the executive order “Buy American, Hire American,” the United States Citizenship and Immigration Services (USCIS) began scrutinizing the adjudication of H-1B visa applications more closely.

Our attorneys witnessed this phenomenon first hand. The volume of requests for evidence increased significantly and USCIS began to be more demanding in the types of documentation requested to qualify for the program.

For this reason, we advise our clients and readers to be very careful this H-1B season and be mindful of the challenges they may face as they proceed with the H-1B visa process.

Common Types of RFE’s and how to avoid them:

  • Level One Wage: Executive Order “Buy American, Hire American” directs the Department of State to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. USCIS has increasingly issued RFEs in which the employer is paying the H-1B worker a level 1 wage. This has prompted USCIS to question why someone with a specialty occupation would be paid the level 1 wage, a wage that is typically reserved for entry-level positions and individuals who only have a basic understanding of the occupation. Thus, it would not be appropriate for someone who has an intermediate to advanced understanding of the occupation to be paid a level 1 wage. Situations in which a level 1 wage is inappropriate also include cases where the worker will take on a complex set of job duties.

Continue reading

by

31192602946_34cf286a7f_z
In an effort to modernize and streamline the application process, the United States Citizenship and Immigration Services (USCIS) has finally announced that it will begin to accept payment via credit card for all 41 fee-based forms. Previously, applicants were required to make filing fee payments by personal check or money order for most fee-based forms. Now applicants will be able to use their credit cards to pay their filing fees using Form G-1450 Authorization for Credit Card Transaction.Accepted credit cards include Visa, MasterCard, American Express and Discover cards.  Applicants for naturalization and those renewing or replacing their Green Cards can pay via credit card using the e-file system.

Applicants filing any of the following forms with a USCIS Lockbox facility may now utilize the credit card payment option. Please remember to include Form G-1450 along with your application when filing by mail:

*Most frequently used forms appear in bold.

Continue reading

by

8578663770_5e1dbbe12f_z

On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

Continue reading

by
35937452074_64d9907b89_z

Image by Perzon SEO

On September 19, 2017, the American Immigration Council in cooperation with Mayer Brown LLP, filed a lawsuit in federal district court on behalf of the National Venture Capital Association (National Venture Capital Association, et.al. v. Duke, et. al.) challenging the President’s postponement of the International Entrepreneur Rule. The Plaintiffs in the lawsuit collectively argue that the United States Department of Homeland Security (DHS), unlawfully delayed enforcement of the International Entrepreneur Rule by circumventing key provisions of the Administrative Procedure Act.

In order for a federal rule to become effective, the Act requires federal agencies to abide by a notice-and-comment rule making procedure, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. After the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on the content of the rules. The Supreme Court has ruled that the notice-and-comment procedure is required for “legislative” or “substantive” rules that intend to “bind” the public, and that similar to a statute, these types of rules have the “force and effect” of law. The notice-and-comment rule making requirement, however does not apply to interpretive rules, which are rules that do not bind the public or have the “force” of law in the same way that legislative or substantive rules do. The National Venture Capital Association argues that the government unlawfully invoked the “good cause” exception of the APA to postpone the Rule, and that the Rule was unlawfully halted under the pretext that doing so would prevent harm to the public interest, when no emergency situation existed which would allow such a delay.

The International Entrepreneur Rule was first published in the Federal Register on January 17, 2017, and the notice-and-comment period was set to begin 30 days from the date of the rule’s publication in the federal register. However, the government never announced a comment period for the Rule. On July 13, 2017, the Department of Homeland Security announced that the implementation of the rule would be delayed to March 14, 2018, at which time the government would seek comments from the public, with a plan to rescind the rule.

Continue reading

by

12547469204_8fbc4b6018_z

On April 18, 2017, the President signed the controversial executive order, Hire American, Buy American, “in order to promote the proper functioning of the H-1B visa program.”

The President’s executive order directs the heads of various departments to suggest reforms to the H-1B visa worker program, a lottery based work visa program reserved only for professionals working in specialty occupations. The EO specifically aims to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Since the President signed the executive order, no reforms or regulations have been passed by Congress to enforce the provisions of the order on the H-1B visa worker program, however enforcement of the provisions of the executive order are beginning to be seen through the adjudicatory measures of USCIS immigration officials.

As of late, the United States Citizenship and Immigration Services (USCIS) has become a lot tougher in adjudicating H-1B visa applications. This means that securing an H-1B work visa will become a lot more difficult going forward. For the last few months, USCIS has been aggressively issuing more numerous and more stringent “requests for evidence” in comparison to previous years. This phenomenon has manifested itself generally in response to work visa applications for highly skilled workers, and is not just reserved to H-1B work visa applications.

Continue reading

by

25388721144_c637ac5a36_z

Great news for cap-exempt H-1B applicants! Effective immediately, the United States Citizenship and Immigration Services (USCIS) will resume premium processing services for certain cap-exempt H-1B petitions.

As you may recall in early April, USCIS temporarily suspended expedited processing of all H-1B petitions to reduce H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark.

Today, July 24, 2017, USCIS announced that certain cap-exempt H-1B petitioners can now take advantage of premium processing services.

Please note that H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program are not affected by the suspension.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners or applicants who make use of the service. Applications that are not processed within 15 calendar days otherwise receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners or applicants must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision.

Continue reading